EPA’s clean water act may prohibit mining

• Pebble and other mining companies could be affected

By Jenny Neyman
Special to the Homer Tribune

Kenai’s Phil North’s first impression of Bristol Bay was only a hint of the place.  It wouldn’t be until he was nearing the end of his 20-plus-year career with the Environmental Protection Agency in Alaska that he realized the scope of the place. Not just lots of salmon, but the healthiest wild salmon runs left in the world. Not just ample biodiversity, but one of the few remaining intact, untampered-with watershed systems. A fishery that not only helped pay his summer wage, but that generates $1.5 billion annually in output or sales value across the United States, according to a recent Institute of Social and Economic Research report, and supports local residents socially, spiritually and culturally, as well.
It took about 30 years and the prospect of one of the largest copper mines the world has yet seen digging into the area around the headwaters of that watershed for North to come to realize how special a place Bristol Bay is. And why, to his mind, it needs protection beyond what the companies and state of Alaska would afford. To the point of pulling the EPA’s potent and rarely used trump card — a 404(c) designation under the federal Clean Water Act, which could limit mining in the area before a specific proposal is even submitted.
“It really takes an exceptional situation for it to be used. But when I started talking about it with people, almost everybody said, ‘If there’s anyplace this should be done, it’s Bristol Bay,’ because there’s no place on Earth like Bristol Bay. It really is the last of the great places for salmon,” he said.

‘Not an ordinary mine’
From the time the Pebble Partnership was finding increasingly substantial deposits of porphyry copper, gold and molybdenum in its exploration activities in Southwest Alaska, North’s attention focused more and more on Bristol Bay. By 2009 the prospect of mining in the Bristol Bay region was his full-time job.
“When I first got involved I just thought, ‘OK, another mine, I’ve worked on lots of mines, it’s nothing new.’ As time went on I thought, ‘This is not an ordinary mine. It’s one of the biggest copper mines in the world in the headwaters of the last remaining large-scale salmon habitat in the world. So I just thought we need to really pay special attention to this,” North said.
A complicating factor is that it wasn’t just a potential Pebble Mine on the horizon. There are several deposits in the Bristol Bay region being explored by other mining interests. North advocated for a comprehensive approach to protection of the area, rather than mine by mine. The more he studied the area, the more he thought EPA should utilize its authority under section 404(c) of the Clean Water Act to limit or prevent mining activities in the Bristol Bay area. Specifically:
Clean Water Act Section 404(c) authorizes EPA to prohibit, restrict, or deny the discharge of dredged or fill material at defined sites in waters of the United States (including wetlands) whenever it determines, after notice and opportunity for public hearing, that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies, or recreational areas.
In the realm of federal regulation, the EPA’s 404(c) “veto” authority is a potent trump card, akin to classifying a species as endangered, except more rarely implemented — only 13 times since 1972. The last time it was used was in 2011 revoking a coal-mining permit in West Virginia, where an operator wanted to access an underground coal seam by blasting through a mountaintop. It’s been considered in other instances — including a situation on the North Slope involving Chevron, but the company voluntarily altered its project to avoid the process going any further, North said.
Bristol Bay Native tribes, Native corporations and commercial fishermen petitioned EPA to pursue the 404(c) process, and that’s what really got the ball rolling, North said, initiating a comprehensive assessment of the potential impacts of large-scale mining development on Bristol Bay fisheries, wildlife and Alaska Native cultures of the region in 2011.
“Really, it probably wouldn’t have happened without the tribes writing the letter. When the tribes did that it really got the managers’ attention. EPA takes tribal sovereignty very, very seriously. I think the tribes are really responsible for EPA making the decision to do the assessment,” he said.
An assessment draft was released in May 2012. A revised, peer-reviewed draft was released for public comment April 26, 2013. Public comment was extended for 30 days at the end of May and closed June 30. A final version of the assessment is due out by the end of the year. Once the assessment is complete, EPA will issue its decision. It could do nothing, it could disallow any dredging or discharge in the Bristol Bay region, thus curtailing the feasibility of a large-scale mine, or it could stake out a middle ground of putting stipulations on any mining activity that might happen there. Perhaps stipulations so restrictive that Pebble and other mining interests will find it unfeasible to mine there.
“I don’t expect EPA to come in and just say, ‘No mine.’ It’s possible but I don’t expect that. What I think they’ll do is take the assessment and they’ll pull out the things where the state of practice won’t address all the issues, and they’ll put restrictions in that will have to apply to any permit to any mine in that area,” North said.
If that does happen, North expects a lawsuit to follow. As rarely as 404(c) authority is used, it’s even more rare for it to be invoked without major pushback from permittees and/or the state in which they’d like to do business. The West Virginia coal mine issue, for instance, went all the way to the U.S. Supreme Court, with the company arguing that EPA couldn’t revoke a permit that had already been granted. EPA won the case, under reasoning that North thinks will prevail if EPA is taken to court over enacting restrictions in the Bristol Bay watershed.
Pebble operators have bristled at the idea of EPA so much as stipulating mining restrictions before Pebble even submits its mining design and permit applications. But North says that 404(c) authority can be invoked at any point in the mining process, to disallow a permit, revoke an already-granted permit or prevent an activity before permit applications are submitted.
“The Clean Water Act Section 404(c) is very clear. It says that EPA can restrict the designation of a site as a discharge point at any time if the administrator determines that there will be an unacceptable adverse effect. So I don’t think there’s any question EPA would prevail,” North said. “And it says in areas where there is an exceptional resource it’s desirable to put those restrictions in place ahead of time, so if they decide to come in they know what the playing field is and they don’t have to invest a lot of money designing something that they can’t do. Unfortunately, Pebble has (already) spent hundreds of million of dollars, but at least it would prevent them from spending more if they really can’t mine there, and it would prevent all the rest of the mining companies from spending more if they can’t mine there.”
The state of Alaska, too, has rankled at EPA doing a 404(c) assessment, calling it a federal overreach. Alaska already has rules, regulations and a permitting process meant to protect the environment. But North says they’re not enough — or that they aren’t enforced strictly enough. He said he’s noticed a trend in Alaska since the Murkowski administration put more emphasis on green-lighting permitting and resource development, with less heed paid to possible environmental damages.
“The state laws are good and they used to apply them pretty strictly, but that doesn’t happen anymore. There’s a lot of talk about Alaska having the best environmental laws in the country and being the most protective of salmon. That argument probably holds water as far as the letter of the law goes. But it depends on the way they’re implemented in the state of Alaska. It doesn’t hold water at all because the state employees are not allowed to apply the laws the way they’re written,” North said.
Being the regional boots on the ground, North got the assessment process started and eventually took on an editing role as different researchers and scientists compiled data.
“People from all over the country got involved and, really, they’re the experts in their fields. I’m the local knowledge. I know Bristol Bay salmon, I know Alaska, I’m a salmon biologist. I was essentially quality control to make sure that the things they were looking at were technically correct and current for Bristol Bay,” North said.
He also is a co-author of one of the most contentious parts of the assessment, collaborating with a mining expert in EPA’s Cincinnati lab to develop the mining scenario on which much of the determination of potential environmental harm is based. Pebble has discussed preliminary plans but not finalized anything to the point of submitting permit applications. How, then, can EPA determine what adverse effects might come of mining in the area — at Pebble or the other deposits — if the scope and specifics of that mining activity haven’t yet been determined?
North and his collogue designed the mining scenarios based on specifics of the area and standard mining practices. In essence, what would a mine likely look like?
“There is only so much technology available worldwide for mining, so we’re going to look at the technology and say, ‘What is the state of the art that’s possible?’ And if you take it to the state of the art, ‘What’s missing so that you’ll have an effect on the resources? What’s the remaining risk?’ And, really, mining companies don’t use state of the art because it’s too expensive, so it’s really more like the state of the practice. And then what’s the risk that remains? You don’t have to have the mine plan to do that,” North said.
The draft assessment has generated some strong opposition from mining proponents and state representatives, in some cases taking issue with specifics, up to objecting to the whole process. North stands by the quality and accuracy of the assessment and said that much of the criticism he’s heard isn’t based on fact, much less motivation to do what’s best for Bristol Bay.
“I think the industry and the state are going to find whatever they can to criticize it. A lot of that is just a public-relations effort,” North said. “I read the state’s comments on the last draft and some of them were very good and insightful and helpful for us to go back and make the changes that we did, and in some cases it’s clear that they didn’t even read (the assessment). I think there’s a lot of hyperbole and ideological hysteria, and it’s unfortunate because I know some of these state people, and most of them have so much integrity and I really respect them as professionals. But they all have to be sensitive to the politics, I guess.”
North hopes to see a 404(c) ruling that protects the Bristol Bay watershed from mining, but he won’t see it in his career. He’s now transitioning into contract and consulting work, having retired this spring.
“I wanted to see it to the end but it stretched on too long. It was time to go, but I saw it at least through what I hope was the final draft. My guess is it won’t change very much,” he said.

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Posted by on Jul 17th, 2013 and filed under Headline News. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

1 Response for “EPA’s clean water act may prohibit mining”

  1. Kip Power says:

    Actually, the West Virginia case has NOT been heard by the U.S. Supreme Court as of yet, nor has it made it’s way there. I believe that Mingo Logan Coal Company has petitioned for rehearing en banc by the D.C. Circuit, and until the case is concluded in that court it would not be ripe for any discretionary petition to the U.S. Supreme Court. So while EPA has “won the case” for now, it is not yet over.

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